Convict Tickets of Leave in NSW 1788 to 1850

LEGAL POSITION OF TICKET OF LEAVE HOLDERS

Imperial and local statute law and practice from 1823

The defects in pardons were repaired by an Imperial statute in 1823 (Note 1) and an Act of 1824 (Note 2) gave power to protect property acquired since remission by the governor of the whole or any part of a felon's sentence. However, the position of ticket holders remained precarious.

Ticket of leave holders remained subject to the summary jurisdiction of the magistrates for misbehaviour. While the proportion of tickets revoked seems small, the consequences were significant. For minor breaches a ticket holder was returned to government service (Note 3). For greater offences, local legislation discriminated against convicts (which included ticket of leave holders) by providing stiffer penalties (Note 4).

In 1832 the NSW Legislative Council, by Act 3 Wm IV, No.3, s.365, empowered holders of tickets of leave or tickets of exemption from government labour to maintain any action or suit in any court of the colony, and to protect property acquired after such temporary or partial remission was granted, with effect retrospectively to the date of their ticket. The device by which the courts had earlier overcome attainder, viz. requirement of proof of conviction, was removed by providing that an "examined copy of [the relevant part of the] indent" would be deemed sufficient to establish the fact of transportation as a convict (Note 6).

Ticket holders were placed at an advantage compared to other convicts. However, such advantage was short lived. A month earlier the Imperial Parliament enacted 2 & 3 Wm IV, c.627, prohibiting convicts from acquiring or holding any property, or of bringing any action for the recovery of property, until pardoned by the governor (Note 8).

The importance of the role played by the ticket of leave is highlighted by Governor Bourke's reaction to the Imperial Act. Bourke had on a number of occasions stated his preference for tickets of leave over conditional pardons (Note 9). The former gave a significant measure of control over their holders, through the discretion to revoke, "without the danger of permanent mischief from those whose reformation is temporary or pretended". Bourke continued to press for a restoration to ticket of leave holders of the privileges of free subjects during good behaviour (Note 10).

In the meantime, a larger number of applications than usual for conditional pardons were being received. The Act 2 & 3 Wm IV, c.62 had set identical lower limits for tickets of leave and pardons (Note 11). Governor Bourke felt he had little choice but to recommend conditional pardons in most cases, even though he would have preferred to grant tickets instead (Note 12).

The Molesworth Committee had recommended that the legal obstruction faced by ticket of leave holders in recovering wages be removed (Note 13). Section 2 of 2 & 3 Wm IV, c.62 was eventually repealed in 1843 (Note 14). Ticket-holders were thereafter be permitted to acquire and protect personal property, and sue for damages or injury (Note 15), but not to acquire real property (Note 16). On revocation of the ticket the felon's property would vest absolutely in Her Majesty (Note 17).


The next part is A decline in liberty: the trend over the period 1788 to 1850

NOTES

Note 1 See above.

Note 2 5 Geo. IV, c.84, s.26, dated 21 June 1824.

Note 3 For receiving or buying slop clothing a free person was fined 5 , yet a ticket holder was returned to government service and obliged to pay the fine if it could be afforded: Druitt to Bigge, in Ritchie, Evidence , I, 17. Later, local Act 9 Geo IV, No.10 (1828) was enacted to prevent trafficking in convict slops, but did not discriminate between free and convict.

Note 4 See Macquarie to Bathurst, 24 Aug 1820: HRA , I, 10, 335. For example, see the local Transportation Act 1826, 7 Geo IV, No.5, which permitted transportation to places of secondary punishment for convicts or ex-convicts, but limited punishment for free immigrants and those born in the colony to local imprisonment for first offences: s.5. This Act was repealed by 3 Wm IV, No.3, which also permitted labour in irons, in lieu of transportation, for convicts and ex-convicts: s.3. See also s.1 of the local Vagrancy Act , 6 WM IV, No.6 (1835).

Note 5 Dated 24 August 1832.

Note 6 Section 35. This section was construed narrowly in Doe d. Cotton v. Farrall (1847) 1 Legge 408.

Note 7 Dated 11 July 1832. This Act also removed the Governor's discretion to grant early tickets of leave. See above.

Note 8 Section 2.

Note 9 See e.g. Bourke to Goderich, 20 Nov 1832: HRA , I, 16, 802-3; Bourke to Stanley, 18 Oct 1834: HRA , I, 17, 558-9; Bourke to Glenelg, 23 Dec 1835: HRA , I, 18, 237-8.

Note 10 Bourke to Stanley, 23 Dec 1835: HRA , I, 18, 237-8.

Note 11 Darling required the holding of a ticket for six years as a condition for granting of a conditional pardon: HRA , I, 13, 182. Darling was instructed to set a minimum of ten years before a lifer could obtain a conditional pardon (compared to eight years under the Imperial Act of 1832): HRA , I, 14, 611.

Note 12 Bourke to Stanley, 18 Oct 1834: HRA , I, 17, 558-9.

Note 13 Report of the House of Commons Select Committee on Transportation 1838 (hereafter the Molesworth Committee Report), British Parliamentary Papers, Crime and Punishment, Transportation, Vol.3, 1837-61 , (hereafter BPP 8), p.37 of index summary.

Note 14 6 Vict, c.7. The governor's power to grant pardons was replaced with the power to recommend only: section 2.

Note 15 Section 3.

Note 16 Section 4.

Note 17 Section 3.


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